European Courts and Citizens Struggle to do “What’s Right” Amidst Reactionary Migration Law and Policy

It is no secret that Europe has been experiencing massive immigration since the Syrian conflict began in 2011. It has not seen similar numbers of migrants seeking refuge since the Second World War. In 2015 alone, there were 1,255,640 asylum applications to the 28 member states of the European Union (EU), Switzerland, and Norway.[1] It should come as no surprise, then, that the paths of EU citizens and refugees are bound to cross. Met with refugees in their daily lives, many citizens of the EU would like to help, but are understandably wary of the legal implications of helping potentially undocumented people. However, some choose to assist people in need and worry about the consequences later. What follows below are four cases that highlight how individual citizens and courts of member states have dealt with situations involving a conflict between doing “what’s right” and what’s legal.

The Danish Case

On September 7, 2015, Lisbeth Zornig Andersen was giving a presentation in southern Denmark as a great wave of refugees hit Denmark.[2] A large number of migrants were making the 160-kilometer trek from southern Denmark to Copenhagen, with the hope of reaching Sweden from Copenhagen. Lisbeth decided to help a group of six refugees, two of them small girls, by giving them a ride. With no resistance from the local police, she drove them to her husband’s (Mikael’s) home where he greeted them with coffee and cinnamon buns. Mikael offered to let them stay at his home that night, but they were eager to be on their way. He then drove them to Copenhagen and bought them tickets to Sweden. Once they arrived in Sweden, a family member phoned to let Mikael and Lisbeth know that they had arrived safely.

What the couple did not expect was the lengthy court battle that followed. In October 2015, they were contacted by the police and asked to come to the station for interrogation. Interestingly, the police did not summon Lisbeth and Mikael sua sponte; rather, about fifteen complaints against them had been lodged by ordinary Danish citizens. The couple was accused of aiding, transporting, and harboring persons without valid travel documents. On March 11, 2016, they had their day in court. The prosecutor recommended a combined fine of about $5,000[3] or fourteen days in prison. Despite their lawyer’s arguments that their actions were driven by humanitarian motives and the fact that neither the police nor the government had a clear position on the legality of transportation at the time it happened, the judge rendered a verdict against them in about twenty minutes. The Danish Aliens Act does not contain an exception to smuggling on humanitarian grounds. The couple appealed the ruling to the Danish High Court, which affirmed the lower court. They then appealed to the Danish Supreme Court, which rejected the appeal. Thus, the law in Denmark seems to be clear: it is a criminal offense to help people for humanitarian reasons. Or is it?

Lisbeth and Mikael’s story is but one of many similar stories from Denmark during that time – they were not the only Danes helping refugees by giving them a ride. In a similar case, a person was fined only about $730. In other cases, people offering rides to refugees were not found guilty at all. How to make sense of this? It would seem that courts in these cases are unsure what should be done, and perhaps struggle with the notion of fining people thousands of dollars just for simply assisting people in need.

The Swedish Case

In the spring of 2014, Fredrik Önnevall and two other journalists were in Greece working on a documentary about the reaction of Europe’s nationalist parties to the migrant influx. Önnevall, his cameraman, and his interpreter met Abed (not his real name), a 15-year-old Syrian refugee, who asked if they would take him with them back to Sweden. After some thought, the team canceled their flights from Greece to Sweden and accompanied the boy on his journey through Europe to Sweden, where he had a cousin. Önnevall and his team were subsequently charged with human trafficking.

On February 9, 2017, the district court of Malmö, Sweden convicted Önnevall and two other reporters for human trafficking. Though clear to the court that the reporters were motivated by humanitarian reasons, it was unable to find any case law to support a humanitarian exception.  This judgment is likely to be appealed soon.

The French Cases

The next two cases took place in southern France. The first involves a French researcher who was stopped by police in October 2016 with three Eritrean women in his car. The women had recently crossed the border into France from Italy, and Pierre-Alain Mannoni had planned to give them shelter and help them reach Marseille. His trial began on November 23, 2016 and the court reached its decision by mid-January 2017. The court acquitted Mannoni, reasoning that he had “no other intention than to offer them a night of safety and thereby preserve their dignity.”[4] Moreover, the court noted that he had not received any compensation, direct or indirect, for his actions.

The second case involves a French olive grower, Cédric Herrou, who has been compared to Harriet Tubman for his efforts to help African migrants. Herrou has assisted some 200 migrants over the past year, housing them in his own home and in an abandoned building owned by the French national railway company. Last autumn, he was charged with helping people to enter, travel, and stay illegally in France. Herrou faced a possible sentence of five years in prison and up to $32,000 in fines. On February 10, 2017, the court in Nice, France convicted him of helping migrants to illegally cross the border between Italy and France, but his fine was reduced to $3,200, which he does not have to pay if he “stays out of trouble” for the next five years. He was not given any jail time. Essentially, the court rendered a warning and a slap on the wrist.

Discussion

These cases are merely drops in the bucket of hundreds of similar cases across Europe. The disparity in treatment of citizens among these member states and, indeed, the disparity of treatment within the borders of a single member state (Denmark), raise more questions than answers. Some of the questions are legal and others raise policy issues. What accounts for the disparity in treatment across the European Union? Should a Union of states not have a consistent and harmonious set of immigration laws and policies? Should smuggling necessarily entail some type of financial incentive for the smuggler?[5] In a Union ostensibly built on democracy and respect for human rights, should the legal system be flexible enough to support these ideals?

The logical starting point to begin fleshing out some of these questions is to look for a common root of EU member states’ laws regarding facilitation of people. One source is Council Directive 2002/90/EC “defining the facilitation of unauthorized entry, transit and residence” (hereinafter “Facilitation Directive” or “Directive”). Article 1 of the Facilitation Directive sets forth the provisions regarding general infringements:

1. Each Member State shall adopt appropriate sanctions on:

(a)  any person who intentionally assists a person who is not a national of a Member State to enter, or transit across, the territory of a Member State in breach of the laws of the State concerned on the entry or transit of aliens;

(b) any person who, for financial gain, intentionally assists a person who is not a national of a Member State to reside within the territory of a Member State in breach of the laws of the State concerned on the residence of aliens.

2. any Member State may decide not to impose sanctions with regard to the behavior defined in paragraph 1(a) by applying its national law and practice for cases where the aim of the behaviour is to provide humanitarian assistance to the person concerned.

One of the goals of this Directive (and most directives) is to harmonize potentially divergent laws of EU member states. Pursuant to the Directive, member states were required to, if necessary, amend their national legislation to make it consistent with the provisions before December 5, 2004. One crucial aspect of the Directive that helps account for the inconsistent treatment of EU citizens across Europe is the permissive language found in paragraph 2. It states that a member state may, but is not required to carve out a humanitarian exception to its respective national law regarding facilitation. Thus, strictly legally speaking, the Danish and Swedish national governments have done nothing wrong by failing to include a humanitarian exception – they were not required to include one. However, there is a broader problem: can the goal of harmonization be actualized with such disparity among member states? Can we truly say that harmonization has happened if a person in member state “A” receives a five-year jail sentence and a $30,000 fine for offering basic amenities to migrants fleeing persecution, while an EU citizen in member state “B” receives no penalty for the same actions? More broadly, are we content living in a society that effectively criminalizes decent human behavior?

Another point regarding human rights is also worth mentioning. In a Union that prides itself on its respect for human rights, it is incumbent on the member states to take care of people fleeing lands where their rights and lives have been endangered. And when, as now, the member states and Union have failed to ensure these peoples’ rights and lives are respected and safeguarded, it falls on the constituents of those states, EU citizens, to ensure the universality of human rights.

So, what should one do when confronted with a situation similar to those described above? That is a personal choice, but it should be an informed choice as well. The first caveat is that not every member state has chosen to include a humanitarian exception to its legislation on smuggling. Thus, invoking this exception would likely fall on deaf ears, as it did in the Danish courts, in states whose national legislation did not include a humanitarian exception. The second caveat is that even within those states that have included humanitarian exceptions, there is still no guarantee that a particular court would decide that these types of actions would fall under that exception. So, if a person decides to offer an undocumented migrant a lift or shelter, she should be wary of the potential implications.

Relatedly, if an EU citizen has been charged with smuggling by the national authorities of her member state, what legal recourse is available? Other than invoking the humanitarian exception in states that have included it in their legislation, one could also invoke applicable laws on the freedom of conscience, thought, and religion. Indeed many of the people charged with smuggling have, for instance, referred to the biblical story of the Good Samaritan in explaining what drove them to help migrants in need. One such law available to all EU citizens is Article 9 of the European Convention on Human Rights. Article 9 – Freedom of thought, conscience, and religion – states as follows:

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health, or morals, or for the protection of the rights and freedoms of others.

There is a lot to unpack in Article 9, but two aspects are particularly noteworthy for the purpose of this analysis. The first is that Article 9 guarantees not only the internal aspects of the right to freedom of thought, conscience, and religion, but also the right to manifest one’s religion and beliefs, with very limited restrictions. The second is that the freedom to manifest one’s religion or beliefs can be abrogated when it would be incompatible with the protection of the rights and freedoms of others as required in a democratic society. If the protection of the rights and freedoms of others is important enough that it constitutes one of the limited exceptions to the general freedom to manifest one’s religion or beliefs, it follows then that the exercise of said beliefs (in this case, helping people whose countries of origin have not ensured their citizens’ rights and freedoms) is not only lawful but should be encouraged in a democratic society.

Many of the questions raised in this paper do not have a clear answer and lead to further questions. However, as the global migration situation develops, these questions will need answers that allow for coherent, comprehensive, and consistent solutions. Therefore, we must keep the dialogue open not just in the political sphere, but also among the judiciary and among private citizens. These issues pervade all constituents of society and cannot be solved without the participation of all those affected.

[1] Final numbers for 2016 are not yet available.

[2] According to Eurostat, 20,825 refugees applied for asylum in Denmark in 2015.

[3] This was later increased to over $7,000.

[4] A 2012 French law allows citizens to help migrants for humanitarian reasons, so long as citizens are disinterested.

[5] It is worth mentioning that in none of the cases above did the people who helped migrants move receive any compensation for doing so.